Don’t like Google? Don’t use it! An unlikely ally speaks up on antitrust allegations

Internet giant Google has been facing increasing scrutiny from regulators in the United States — as well as in the European Union — for everything from its privacy practices to tweaking its search algorithms to favor its own vertical products and services at the expense of competitors. Now, Google has a strange ally in the form of one-time Supreme Court nominee Robert Bork, who has penned an op-ed for the Chicago Tribune arguing that, as big has Google may be, it’s impossible for Google to behave anticompetitively in a marketplace where users can change their search engine in the span of a few clicks. If Google were harming consumers, Bork argues, consumers would go elsewhere in the blink of an eye, and Google would be just another minor footnote in Internet history.

Who is Robert Bork, and how can he make this sort of argument when Google for years has been resolutely insinuating itself into almost every aspect of Internet users’ lives?

Robert who?

For the Internet generation, the name “Robert Bork” might conjure up YouTube clips featuring the Muppets’ Swedish Chef or the term “borked,” usually in reference to a feature or app that’s broken because of a company’s or developer’s willful stupidity. (For example, “Apple’s Ping social networking service in iTunes is borked.”) But that’s not where the term comes from: It comes from President Reagan’s 1987 nomination of Robert Bork to the Supreme Court of the United States.

Bork’s nomination was rigorously opposed by civil rights and women’s rights groups, as well as leading progressive and liberal figures. Heck, opponents even got actor Gregory Peck — Atticus Finch himself — to do television ads opposing Bork’s nomination. The term “borked” was originally used to describe opposing someone — usually a public figure — using denigration, malignment, and outright defamation. Bork and his supporters argued that virtually nothing opponents were saying about him was actually true, but the damage was done: Bork was not confirmed, and the process had a profound influence in the way Supreme Court nominees have been vetted (and confirmed) since.

An interesting aspect of Bork’s confirmation process came when the judge’s video rental history was leaked to the press. Although the rentals themselves were innocuous — popular movies and Hitchcock thrillers — writer Michael Dolan justified publishing the list on the grounds that Bork had argued that Americans only had rights to privacy afforded them by direct legislation. Since there was no law saying video rental records were private, Dolan published the list. The incident led directly to one of the first consumer privacy laws, 1988’s Video Privacy Protection Act, signed into law by President Reagan. The VPAA would later be used to argue the Facebook Beacon advertising platform was a violation of consumer privacy rights, and more recently as a reason why Netflix hasn’t integrated directly with Facebook.

A failed bid to the Supreme Court might be the end of many legal careers, but Bork kept going. He resigned his seat on the D.C. district Court of Appeals and worked for several years as a senior fellow at the American Enterprise Institute, and more recently at the Hudson Institute, both conservative think thanks. He also teaches, practices law, and writes books.

In those roles, Bork has excelled as an antitrust scholar: He helped advise Netscape in its antitrust efforts against Microsoft, and has championed the view that antitrust regulation should focus almost exclusively on consumer welfare — and where that idea used to be on the fringes of legal thinking, Bork has succeeded in making it mainstream. And that’s why his endorsement of Google’s practices carries some weight.

As Bork sees it…

Lawyers are known for being long-winded, but Borks’ arguments in favor of Google are surprisingly succinct.

“No agency or critic has articulated a coherent theory of how Google harms consumers,” Bork wrote in his op-ed. “The principal basis for the investigations appears to be that if one does not understand practices in an industry, the practices must violate the law.”

Bork argues the value of Google’s search business lies in how well it can match search results to what consumers actually want. This benefits Google in two dependent ways: It provides a highly relevant service to consumers for free, and enables advertisers to reach consumers who are most likely to be interested in particular products or services. Google charges advertising rates “based on the usefulness to consumers of the seller’s website and penalizing sellers whose websites aren’t consumer oriented.”

According to Bork, there is nothing unfair about Google optimizing its search algorithms for consumer searches — in fact, competitors do exactly the same thing. Google is just getting scrutiny because it is more successful.

Where regulators seem to view Google as the 800-pound gorilla of Internet search, Bork sees a market rife with competition, both from general-purpose search engines like Bing and Yahoo as well as vertical markets, where specialized search services from the likes of Amazon, Kayak, and Expedia have succeeded right under Google’s nose. Moreover, Bork argues that since search engines can’t lock in users, consumers will immediately switch to another search engine if they don’t like what they see. After all, in most cases, it just takes a few seconds to change a default search engine from Google to Bing or DuckDuckGo or Ask.com.

“There is no coherent case for monopolization because a search engine, like Google, is free to consumers and they can switch to an alternative search engine with a click,” Bork writes.

Bork addresses regulatory concerns Google is promoting its own services (like shopping, flight results, maps, and local businesses) over competitors with two arguments. First, Bork notes that Google isn’t exploiting a patent or monopoly in doing so, nor has it gained unfair market presence through a merger: Bork claims Google’s listing of its own services in generic searches results from “business acumen:” Simply put, if competitors did a better job, Google would list them first. Google’s services do a better job because Google has refined their services to better meet consumers’ needs. If they didn’t, consumers would go elsewhere.

Second — and perhaps more significantly — Bork frames Google’s advertising business not in the context of Internet advertising, but in the context of all advertising, including television, radio, print, and other media, as well as vertical search sites. In that context, Bork argues, Google’s market share is “trivial” — echoing claims made before Congress by Google executive chairman Eric Schmidt last September.

Notably, Bork’s arguments in favor of Google focus solely on antitrust issues: Bork does not take on the consequences of Google’s new unified privacy policy, nor does he attempt to address allegations of anticompetitive practices in the European Union, South Korea, or elsewhere. Bork’s expertise is, after all, U.S. law.